Excerpt: - .....and auditing of the accounts of the trust. the petitioners' application has been dismissed by the learned judge as he has found that the wakfnama was executed during the death illness of the testator and that it was never acted upon.2. with regard to the first ground the finding of the learned judge is as follows: 'it appears, however, that it was created when he was in death illness. ha was suffering from phthisis. he may have been ill for a long time but death was near. the evidence on the record has been placed before me and the learned vakil for the appellant assures ma that there is no evidence that the wakif on the day he executed the wakfnama was under an apprehension of immediate death. the mere fact that he was suffering from phthisis or that he died a few days after the.....

Judgment:

Suhrawardy, J.

1. This Rule is directed against an order of the District Judge of 24-Parganas dated the 12th August, 1923, dismissing an application of the petitioners under Section 3 of the Charitable and Religious Trusts Act, XIV of 1920. That section authorizes any person having an interest in a trust of a charitable or religious nature to apply to Court for a direction on the trustee for certain information relating to the trust and for an examination and auditing of the accounts of the trust. The petitioners' application has been dismissed by the learned Judge as he has found that the wakfnama was executed during the death illness of the testator and that it was never acted upon.

2. With regard to the first ground the finding of the learned Judge is as follows: 'It appears, however, that it was created when he was in death illness. Ha was suffering from phthisis. He may have been ill for a long time but death was near. The evidence on the record has been placed before me and the learned Vakil for the appellant assures ma that there is no evidence that the wakif on the day he executed the wakfnama was under an apprehension of immediate death. The mere fact that he was suffering from phthisis or that he died a few days after the execution of the deed is not enough to establish what in Muhammadan Law is technically called Marz-ul-maut. In fact, lingering diseases like phthisis have been taken by Muhammadan lawyers to remove the suspicion of apprehension of immediate death on the mind of the patient. The attention of the learned Judge is drawn to the case of Fatima Bibi v. Ahmed Bux (1908) 35 Cal. 271.

3. In that case the deed was executed by the deceased one week before his death, but the Courts here, as wall as their Lordships of the Judicial Committee, did not think that it was vitiated by being executed during Marz-ul-maut. The law on this point is fully discussed in the judgment of this Court in the case of Fatima Bibi v. Ahamed Bux (1904) 31 Cal. 319. The learned Judge, however, on this point found that the alienation is good to the extent of one-third. But he really throws out the petitioners' application on the ground that the document was not acted upon. By that deed the deceased wakif nominated himself Mutwalli during his lifetime and after his death the Opposite Party No. 1, Kazi Nuruddin Ahmed, as the Mutwalli of the trust.

4. The learned Judge found that the trust on the face of it was good, that a substantial portion of the property was given to religious purposes and that there can be little doubt that it is a valid wakf, I cannot say how it can be held that the wakf was not good because it was not acted upon. It is nobody's case that during his lifetime the dedicator gave any indication of not acting upon this deed. After his death the Opposite Party No. 1 became Mutwalli of this trust by virtue of this deed, and if he did not act according to the trust imposed upon him by the deed, it would in no way affect the character of the endowment. The Judicial Committee has in several cases discussed this matter and in the recent case of Vaidya Varathi Thirtha v. Balusami Ayyar A.I.R. 1922 P.C. 123, the Judicial Committee have laid down the power and limitations of a trustee under the Muhammadan trust. The learned Judge winds up his judgment by this remark: 'It is the Charitable and Religious Trusts Act. It does seem to embrace a case where the so-called trustee has committed so complete a breach of the trust that the trust properties have passed to a third party.'

5. I can well understand the first portion of this remark, which means that the trust, when not acted upon, cannot be regarded as a valid trust, but I fail to understand the latter portion of the sentence where the Judge seems to have been of opinion that because the trustee has parted with the entire trust property, the Act becomes inapplicable. I refuse to assent to this proposition.

6. I think that the learned Judge has not approached the case in the proper way, and that on account of the erroneous view he has taken of the law, he has failed to exercise jurisdiction which was vested in him under the Charitable and Religious Trusts Act.

7. The Rule is accordingly made absolute, the order of the District Judge, dated the 13th August, 1923, dismissing the plaintiffs' application under Section 3 of the Act, is set aside, and the case remitted to him for reconsideration in the light of the observations I have made above. The Opposite Party No. 2 (The Bengal Chemical and Pharmaceutical Company) asks for their costs. In proceedings under this Act, I do Dot think that any person who has claims adversely to the trust and who is not liable under Section 3 is a proper party. No doubt, any decision on an application made under the Act will not be binding upon persons claiming adversely to the trust. But that does not justify the Court in complicating matters by bringing persons who might raise questions outside the scope of the Act. The opposite party No. 2 is, therefore, entitled to his costs in this Court. I assess the hearing fee at one gold mohur. The costs of the lower Court will be at the discretion of that Court. The petitioners are entitled to their costs of this Court from Opposite party No. 1. I assess the hearing-fee at two gold mohurs.